The campaign for John Fetterman, Pennsylvania’s lieutenant governor and the Democratic nominee for Senate, jumped into the dispute over counting undated or incorrectly dated absentee ballots currently roiling the commonwealth’s highest court.
The court last Tuesday, in a split decision, ordered that the absentee ballots in question be segregated and not counted. It is not clear if that order only stands for now, or will take those ballots out of the tally for good. The state court still has not released the promised accompanying opinion.
The Fetterman campaign, along with local voters and the Democrats’ congressional and Senate campaign organizations, picked up the argument a federal court, the United States Court of Appeals for the Third Circuit, made last year: namely, that whether voters write the date correctly or at all on the outer envelope has nothing to do with their qualification to cast votes.
“The Date Instruction serves no legitimate purpose,” reads the complaint, filed in the U.S. District Court for the Western District of Pennsylvania. “For example, the date on the envelope is not used to verify whether the ballot was timely marked: the deadline for marking a ballot and the deadline for the elections board receiving the ballot are identical, so any ballot received after the ballot-marking deadline is not timely and any ballot received prior is definitionally timely.”
The Third Circuit found that the date provision violated the Materiality Provision of the Civil Rights Act, which prohibits the use of pointless, technical requirements to void otherwise valid votes.
The Democrats put forth that argument again, and add that the “unnecessary impediment” also runs afoul of the First and Fourteenth Amendments.
The group argues that the Pennsylvania Supreme Court’s order is already having an effect on the state’s elections, one of which may decide control of the Senate.
“In the few days following the Pennsylvania Supreme Court order, county boards of elections have already identified thousands of mail ballots that will not be counted because a missing or incorrect date on the ballot envelope, rejecting qualified voters who accidentally failed to write the date on their ballot envelope, and more still will be rejected when voters enter an incorrect date, such as their birthdate, instead of the date they completed or signed their ballot,” the complaint reads.
This lawsuit chaos on the eve of a major election was enabled by the United States Supreme Court. The majority voided the Third Circuit’s opinion as moot — because the election the case arose out of had passed, not on the merits — though Justice Samuel Alito couldn’t help himself and, in a different filing, called the appellate court’s decision “very likely wrong.” He had also encouraged involved parties to get the issue before the high court.
Republicans complied, filing a lawsuit against the counting of the incorrectly dated or undated ballots, resulting in last week’s order and the court split. The Pennsylvania Supreme Court only has six members currently, after its chief justice died suddenly earlier this year.
This case is part of a disturbing trend of right-wing attacks on elections ever since the pandemic and conspiracy theories from Donald Trump engineered a change in many states’ voting patterns, with Democrats disproportionately voting by mail more than Republicans. That’s certainly the case in Pennsylvania, where about 70 percent of mail-in ballots so far this cycle have been cast by Democrats. It gives right-wing actors an easy pool of votes to target, safe in the knowledge that they’d mostly be tossing out votes for the other side.
Read the complaint here: